Is popular sovereignty unconstitutional?

The recall referendum saga continues in Venezuela, and with each twist and turn the Chavez regime further undermines its claims to democratic legitimacy. Through its increasingly propagandistic embassy in Washington, the Chavez regime now says the Electoral Chamber’s decision to revive the Recall Referendum is wrong because it breaks Articles 335 and 336 of Venezuela’s 1999 constitution.

The endlessly malleable constitutionArticle 335 reads, in full: “The Supreme Tribunal shall guarantee the supremacy and effectiness of constitutional norms and principles; it shall be the top interpreter of this constitution, and shall protect its uniform interpretation and application. The interpretations of the Sala Constitucional on the content and scope of constitutional norms and principles are binding on the other chambers of this tribunal and all the courts.”

The following article (336) sets out a long list of attributions for the Sala Constitucional, including:

#10. “Revise the definitive, final rulings on constitutional injunctions (amparos) and judicial review rulings dictated by the tribunals of the republic, in the terms established by the applicable framework law.”

A couple of things to point out. First off – and pace Freddy Bernal – the Sala Electoral’s “preliminary injunction” is not a definitive, final ruling: it’s a preliminary injunction. Second, the electoral chamber is not a lower ranking tribunal of the republic, it is part of the Supreme Tribunal. Nor was the “letter” Bernal bases his claim on an official Constitutional Chamber decision, since it was taken without the reglamentary 4-magistrate quorum.

Bedrock principlesBut the real point here goes deeper. The revision process set out in Article 336, numeral 10 is an exceptional, last-appeal power meant as a final procedural guarantee for bedrock constitutional principles.

The government now wants to use that article to violate bedrock constitutional principles, including the single, most important principle of them all, the democratic cornerstone of the constitution as a whole: popular sovereignty.

The government and the CNE will have to argue that the far-fetched “repairs process” dreamed up inside CNE is somehow more of a constitutional bedrock value than voting.

In fact, they will have to make the case that moving ahead with a “reparos process” on the basis mandated by the Sala Electoral, (which is the same basis previously endorsed the Carter Center and the OAS) violates basic constitutional principles. In other words, that the constitution itself (articles 5, 72 and 297) is unconstitutional.

This is what the revolución bonita has come to: the highest legal authorities in the land, the ultimate constitutional “guarantors” of democratic legality, going all out to keep the people away from deciding the country’s future through the ballot box. The protectors of constitutional order trying to write out of existence key parts of the document they are sworn to protect. The nation’s chief magistrate explaining why popular sovereignty is such an alien, repulsive, fundamentally unconstitutional principle that the sala constitucional must use extraordinary faculties to prevent such “injury” from being inflicted on the constitutional order.

1999 Chavez vs. 2004 ChavezA bit of history for the forgetful, or late comers: Five years ago, when Hugo Chavez proposed holding a referendum that was plainly and openly unconstitutional (under the then-valid 1961 constitution) – the government simply jumped over the entire existing legal framework. Chavez did not even argue that the opposition was misunderstanding the law – instead, he claimed the laws in principle cannot limit the sovereignty of the people.

It’s worth pondering the reasons they gave all that time ago. Chavez reasoned that the people’s democratic will expressed at the ballot-box is “supra-constitutional,” “originario”, pre-existing and over-ruling all settled bodies of law. 1999 Chavez argued that voting justifies itself, because when people vote, they exercise their collective sovereignty directly, and that sovereignty by definition outranks all pre-existing legal norms.

Fast forward five years. We now have new constitutional mechanisms in place to allow referenda – so there’s not even any need to come up with tortured (if clever) arguments to back up the call for a vote. Moreover, the requirements to convoke a recall referendum have been amply met – it’s not just me saying that, it’s the Carter Center saying that, and the OAS, and now the Supreme Tribunal’s “natural judge” over CNE.

The chavistas have done a 180 degree ideological turnaround. Suddenly, the expression of popular sovereignty at the ballot box constitutes such a heinous, unacceptable offense against the principles of the 1999 constitution that the Supreme Tribunal’s chavista cronies feel compelled to step in to another Sala’s turf to prevent it.

All that despite the fact that the radical, people-power rhetoric that justified the 1999 referendum is now officially enshrined in the constitution. Article 5 reads, in full, “Sovereignty resides intransferably in the people, who exercise it directly in the ways stipulated in this constitution [among them, I hasten to add, the recall referendum process set out in Article 72. -ft], and indirectly, mediated by suffrage, through the institutions of the Public Powers. The institutions of the state spring from, and are subject to, the people’s sovereignty.”

1999 Chavez would have been furious at 2004 Chavez’s unending leguleyismos, at the obscene grasping at technicisms to prevent the expression of the sovereign’s will. This episodes completes the bonfire of the noble ideals Chavez put at the center of his government in 1998 and 1999.

Or maybe, as some say, there’s no contradiction at all. You just need to substitute in “chavistas” whenever the constitution says “people.” After all, as the government keeps reminding us: Venezuela es del pueblo. But, of course, Chavez es el pueblo.